Public Protector Advocate Kholeka Gcaleka’s decision to not entertain her predecessor’s demands for the payout of her gratuity benefits totalling R10-million was informed by a legal opinion she received from a Gauteng law firm.
Sunday World has seen the legal opinion dated February 10, in which Salijee Govender Van De Merwe Inc wrote to Busisiwe Mkhwebane’s lawyers, saying the gratuity request was misplaced.
According to the opinion, Mkhwebane cannot be paid the money because she left office through an impeachment process. The law firm states Mkhwebane wrote to them demanding that Gcaleka release her gratuity as contained in her conditions of service or state why she could not do so. Consequently, they advised Gcaleka that nothing was due to Mkhwebane.
“[Mkhwebane] was removed as the public protector via the adoption of a resolution by the National Assembly, and the resolution was confirmed and executed by the president. [She] did not vacate office of her own volition. The conditions of service only authorise the payment of a gratuity when the incumbent has ‘vacated’ office, not when the incumbent is removed from office. Apart from the conditions of service, there is no other authority that our client is aware of, including the constitution as well as the Public Protector Act, which permits our client to consider paying your client a gratuity under circumstances where an incumbent is removed from office.”
It was for this reason that the lawyers issued an opinion to Gcaleka to say her hands were tied and bound by the constitution not to pay Mkhwebane’s benefits.
Mkhwebane’s problems began when she misapplied the law when investigating powerful people in the administration, including President Cyril Ramaphosa.
As both parties navigated the terrain tactfully, trying to outsmart each other, the battle reached boiling point when Mkhwebane sent questions to Ramaphosa about the Phala Phala farm saga.
She was suspended and later subjected to a parliamentary inquiry that recommended her impeachment because of her unfitness to hold office. After parliament obtained a two-thirds majority, she was booted out.
Mkhwebane has previously told this publication that she was removed for “touching the untouchables” , including Ramaphosa and Public Enterprises Minister Pravin Gordhan.
She also attributed her dismissal to the investigation into the lifeboat loan extended to Absa by the SA Reserve Bank. She afterwards recommended a review of the central bank’s mandate.
“For me to start investigating the Reserve Bank, it is owned by private shareholders, which are a few families that own the money of the world, and if you come in and say the Reserve Bank mandate should be benefiting the public, you will see flames,” Mkhwebane told Sunday World days before her impeachment. “One of my family members was working in the embassy in Washington and attended a function in New York, and the president was there and took a picture with George Soros of the Open Society Foundation NGO. And apparently, some of those NGOs asked, ‘when are you getting rid of this public protector’? It was around 2019.
“And in 2020, DA MP Natasha Mazzone, lodged a motion to remove me.” Mkhwebane refused to comment about the latest developments, saying she was consulting her lawyers. Clive Govender, of the law firm that penned the opinion letter, also refused to comment, citing “client confidentiality”.
